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The New Jersey Appellate Division is gearing up to hear an appeal of Lakewood Township's Planning Board approval of Bais Reuven Kamenetz's application for a yeshiva - which turned out to include the Ridge Terrace banquet hall, with no notice to the public - on Ridge Avenue near Brook Road, and an adjacent 15-unit Farmer's Drive Subdivision off of Ridge Avenue.

The application under discussion involves the July 2019 Planning Board's approval of this Site Plan application.

The applicant's notice, published by Attorney Miriam Weinstein, informed the neighbors that the application is for "Preliminary and Final Major Subdivision Approval to subdivide the existing tract into 16 new lots. A school is proposed on one of the lots. The other 15 lots will be developed with single family homes."

The notice failed to mention any proposed banquet hall.

At that Planning Board hearing the applicant's professionals testified that there would be a maximum of 8 school buses serving the school; an off-road bus loading zone would accommodate 6 school buses and the bus drop-off and pick-up times would be staggered so there would never be more than 6 buses on-site at a time.

The Board resolution does not state how many students were proposed, however, the applicant submitted a traffic study which said that there would be a maximum of 361 students.

Despite not having provided adequate notice to the neighbors that their application proposed a banquet hall, the applicant testified to the Planning Board that there would be a Simcha Hall (banquet hall for private events) which would be for "smaller events, up to 225 guests".

The application subsequently received Ocean County Planning Board approval.

Following these approvals, a group of neighbors met with representatives of the builder and school to discuss neighborhood and community issues arising out of the proposed construction. At those meetings, the representatives of the builder and school informed the neighbors that the school is actually intended to grow to 700 to 800 students over the next 3 to 4 years, and 15 to 16 buses would be needed to transport all these students to school.

In light of this new information heard directly from the developers, the group of neighbors filed a lawsuit seeking to overturn the planning board's approval.

State law permits people to file suits seeking to overturn Board action in cases where the Board decision is arbitrary, capricious, or unreasonable - but only within 45 days of the Board publishes their memorialization of the approval.

This lawsuit was filed past the 45 day limit because the Township's Zoning Officer Fran Siegel refused to release the pertinent architectural plans which would reveal the school's true capacity, until way after the 45 day limit.

However, the neighbors argued that the court should still vacate the Board approval on the premise that the applicant misrepresented the scope of their plans to the Board - in light of the fact that the developers only disclosed the true scope of the school's intended enrollment after the Board approval.

The neighbors also charged that the Board lacked jurisdiction to hear the application because banquet halls are not a permitted use in this zone and therefore the application required a use variance which only the Zoning Board of Adjustment could grant, and the planning board can not grant.

Finally, the suit charged that the Board lacked jurisdiction to hear the application because the Simcha Hall was not advertised in the legal notice the applicant sent to adjoining property owners prior to the planning board meeting.

Ocean County Superior Court Judge Marlene Ford ultimately upheld the Board approval, saying simply that the suit was not filed within the required 45 day timeframe, and that the complaint regarding the number of students is "speculative". However, Judge Ford did stipulate that the Board approval is specifically limited to 361 students and the neighbors could seek declatory judgement if the school ever increases their student body without first returning to the Planning Board for a change in their approval.

The neighbors, in turn, have filed an appeal to the New Jersey Appellate Division, arguing that the Superior Court ruling should be vacated, and the 45 day limit should be lifted because 1) the public notice was inadequate as it did not mention the Simcha Hall, 2) the Planning Board lacked jurisdiction as the Simcha Hall is not a permitted use, 3) the number of students and buses was fraudulently misrepresented.

The school and its developer have responded with 4 counts against the appeal; 1) the public notice was sufficient as it did "settle the nature of the matters to be considered", 2) Simcha Halls are "not a non-permitted use", 3) The Trial Court is correct that the complaint regarding the number of students is "speculative", and 4) the neighbors failed to put forth an argument germaine to the Subdivision resolution of the planning board.

The school argues in their brief that "Plaintiff alleges that there was a misrepresentation as to the number of students ... and Simcha Hall... However, if Plaintiff performed due diligence it could have easily determined that the plans submitted to the Planning Board references 27 classrooms, and determined the maximum capacity under the building code." The school then asserts that despite them not providing adequate notice regarding the simcha hall, the neighbors were aware of it "through the construction plans provided to the planning board, and through the testimony provided at the public hearing, as well as on the resolution."

Oral arguments on the case are now ready to be scheduled and will be scheduled in due course in the new year.

As previously reported here on FAA News, at some point the Ocean County Planning Board got wind of the alleged fraudulent misrepresentations and they shlepped the applicant to return for a rehearing. At the rehearing, the developers submitted a new traffic study, admitting that the school building could fit over 700 students and that in fact, they anticipate having 15-16 school buses doing pick up and drop offs. The county also asked more in-depth questions regarding the proposed Simcha Hall (which they originally did not disclose to the county). As a condition of the approval, county officials restricted the Simcha Hall to being used only after-school hours.

Since then, County officials have been paying much closer attention to Lakewood school applications, to see if banquet halls are proposed, so they can ensure that traffic impact is considered.

As previously reported here on FAA News, back in May, seeing that the county forced the application to return with updated plans and a more detailed presentation of the scope of the project, the Lakewood Township Planning Board also cajoled the developers to return to the township for an additional review.

The Board agenda stated that the purpose of the meeting was to consider whether "the county approval is consistent with the township approval".

The hearing took quite a while and was quite contentious, as numerous neighbors as well as representatives of the school spoke in opposition to, and in support of, the application.

Some neighbors remarked that the new Simcha Hall was recently advertised in BP Weekly and the ads stated that the hall could fit "over 300 guests". (When the Simcha Hall was originally approved by the planning board, Traffic Expert Scott Kennel testified that the hall would fit only 225 guests.) Curiously, the number of guests was then omitted in future ads.

One neighbor added that she called the Simcha Hall office to reserve the hall and asked if she could reserve the room for 350 guests. The secretary told her that "until after the planning board meeting we are telling people that we can only fit 300, but after the planning board meeting we will be able to advertise for more"!

Amazingly, the applicant's attorney responded that that the 300 number was simply a "publishers typo"!

Ultimately, the Board did a deadlock 3-3 vote on the matter. Board Chairman Moshe Neiman attempted to suggest that, as a compromise, the Board vote to approve with a condition that the applicant increase parking and room for more school buses to load on-site and to loop around to another exit, however, the Board failed to muster enough support for this specific proposal.

Board Attorney John Jackson interpreted the Board's split vote to mean that the status quo remains and the original resolution remains in force.

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Simcha Steinberg said...

BRK does not deny that their notice failed to mention the banquet hall, rather they are arguing that the neighbors had the ability to do "due diligence" and review the architectural plans, and that they "had knowledge" of the Simcha Hall from the plans on file and from the testimony at the public hearing.

This is nonsense and contradictory. In Perlmart, the Appellate Court found that the purpose of the notice is to help you make an informed decision as to whether you should participate in the hearing or at least look more closely at the plans on file. Being that in this case, the application did not disclose the Simcha Hall on the notice, the neighbors did not feel any need to participate in the hearing. They also did not feel any need to look more closely at the plans on file, and hence they were not afforded the informed decision that the notice is supposed to provide.

Aryeh Kleinman said...

The neighbors have a lot to stand on here.

In the famous 2019 case Lakewood Realty Associates v. Lakewood Township Planning Board & RD Lakewood LLC, the trial court ruled in favor of RD Lakewood, determining, among other things, that the notice stating a hotel was proposed was sufficient given that the architectural plans on file with the planning board clearly indicated the proposed hotel would also include a restaurant with a bar, banquet facilities and meeting rooms, which the judge noted "are common amenities in a hotel of this size associated with a national brand."

However, the Appellate Court overturned this decision, finding that the public notice did not adequately describe the proposed use because it did not describe the hotel's restaurant, banquet facilities and intention to obtain a liquor license, which could raise particular public concerns. The court held that by failing to mention these amenities, the notices did not fairly apprise the public of the nature and character of the proposed development.

The appellate panel was not persuaded by the applicant’s argument that the notice adequately described the proposed use because hotels often include bars, restaurants, and banquet facilities.

Same thing here. The fact that schools "often include Simcha Halls" is insufficient according to this Appellate decision.

Anonymous said...

Judge Ford is not on the side of the people. It is very clear in this case. This application should have been thrown out of the window.

Mrs. Ford cited with the planttiffeven even though it is as clear as daylight

Anonymous said...

Kaminetz totally misrepresented themselves, every step of the way. Their sworn testimony is contrary to what they say everyone should understand from looking at their plans. You can't say you're a small school with a lot of space,and then say it's obvious the space was for so many more students. And the parking? Forget about it. It would have been totally different if they had been up front about what they planned here. Especially scamming the neighbors like this. I hope the judge sees what was done here and remands it back to the planning board to make some serious changes. At the very least, if they can't physically change anything now, at least they should close the hall to outside use. After all, it IS a residential area...

Anonymous said...

Judge Ford is for the establishment that voted her in.